Find a Lawyer

Civil Appeal No. 138 of 1974, heard on 2nd April, 1984.

(On appeal from the judgment and order of the Lahore High Court dated 8‑3‑1974 in R . S . A . No. 91 of 1974) .

‑‑‑Art.185(3)‑‑Custom (Punjab)‑‑Will‑‑Leave to appeal‑‑Granted to consider whether question of deceased testator being governed by custom was a mixed question of fact and law and whether deceased testator at time of execution of will was possessed of disposing mind or suffering from marzul maut. ‑‑[Custom (Punjab) ‑‑Muhammadan Law].

‑‑‑5.100‑‑Custom (Punjab)‑‑Will‑‑Trial Court and Appellate Court concurrently holding that execution of will was not proved‑‑Judgment of High Court holding that matter was concluded by findings of fact and question of appreciation of evidence was not permissible in second appeal‑‑Held, cannot be taken exception to and that will not having been proved, question as to whether deceased at time of execution of will was possessed of disposing mind or suffering from marzul maut does not require any consideration. ‑‑[Custom (Punjab) ‑‑Muhammadan Law].

Munir A. Sheikh, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record (absent) for Appellant.

Ch. Altaf Hussain, Advocate Supreme Court instructed by Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd April, 1984.

‑ This appeal by special leave is from the judgment of the Lahore High Court dated 8th March, 1974, whereby a regular second appeal of the appellant was dismissed on the ground that the matter was concluded by findings of fact and questions relating to appreciation of evidence were beyond the purview of examination in a second appeal.

The brief facts of the case are that Muhammad Ibrahim Shah who was the owner of the suit land died on 26th October, 1962. The deceased was alleged to have made a will during his lifetime in favour of the appellant on 1st September, 1962 on the basis whereof one‑third share of the land left by the deceased was transferred in the name of the appellant through a mutation which was attested on 14th March, 1963.

Muhammad Sharif, the first respondent herein, who is an heir of the deceased, filed a suit for declaration and injunction to the effect that the deed of will was forged and fictitious document. It was also alleged that at the relevant time the deceased was on the death bed as he was seriously ill and was an old person. Alternatively it was alleged that the suit land was ancestral property and according to the custom by which he was governed, the deceased was not competent to alienate the same without legal necessity. The respondents Nos. 2 and 3, who are the heirs of the deceased, did not join as plaintiffs, but admitted the latter's claim. The suit after necessary contest was decreed by the learned Civil Judge, Pakpattan, on 6th May, 1964. The appellant filed an appeal against the said judgment and decree and made an application before the first appellate Court seeking permission for calling an expert for the purpose of comparison of the thumb‑mark of the deceased on the will with a thumb‑mark on a see‑deed. The application was allowed by the learned Additional District Judge and the case was remanded on 21st December, 1964. The learned Additional District Judge also directed that issue regarding the suit property being ancestral and whether the deceased was governed by custom under which he was not competent to alienate the ancestral immovable property be also framed. These issues arose out of the pleadings of the respondent‑plaintiff which were in the alternative and by way of further attack on the will itself, in case the same proved to be genuine. The claim of the appellant in the suit, on the other hand, was entirely based on the deed of will and it was nowhere pleaded by him that he had acquired the property by an oral will and in this connection we have perused the written statement which was shown to us at the time of hearing of the appeal by the learned counsel for the appellant.

On remand the learned trial Court framed two additional issues as directed by the learned Additional District Judge, recorded the evidence of the parties and decided all the issues in favour of the first respondent and against the appellant.

Feeling aggrieved by the judgment and decree so passed a second time in the suit, the appellant preferred an appeal before the Additional District Judge, Sahiwal, which was taken up by the appellant to the High Court in second appeal which was dismissed as per impugned judgment.

Leave to appeal was granted on the consideration that the question whether the deceased testator was governed by custom was a mixed question of fact and law and also for examining the question as to whether the testator at the time of execution of the will was possessed of disposing mind or suffering from Marzul Maut.

We have gone through the judgment passed by the Civil Judge in the suit as well as by the learned Additional District Judge dated 2nd March, 1974 dismissing the first appeal of the appellant. It was concurrently held by the learned two Courts that the execution of the will was not proved. Additional issue as to whether the suit land was ancestral qua the first respondent was decided by the trial Court on the concession made by the appellant himself as also on the basis of an expert Exh. P.1 which was produced through Patwari‑Muharrir. The other additional issue whether the alienor was governed by custom under which he was not competent to alienate the ancestral property was also decided by the trial Court and the learned first appellate Court on the basis of the evidence brought on the record by the parties. In this view of the matter no exception can be taken to the impugned judgment of the learned High Court holding that the matter was concluded by findings of fact and the question of appreciation of evidence was not permissible in second appeal.

In passing, however, it may be mentioned that on a result of concurrent findings of the learned trial Court and of the first appellate Court that the will was not itself proved, the decision on the two additional issues was merely of a subsidiary nature not germane to the decision of the suit. It was, therefore, rightly held by the learned Additional District Judge that the will having been reduced to writing, the case was to be decided only on the question as to whether the document was actually executed by the deceased.

In view of the finding that the will was not proved, the question as to whether the deceased at the time of the execution of the will was possessed of disposing mind or suffering from Marzul Maut does not require any consideration.

For the reasons mentioned above, the appeal is dismissed, but there will be, however, no order as to costs.

S . Q . Appeal dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.